Opinion
22-CV-801 (AT) (JLC)
09-18-2023
ROBERT JOYCE, Plaintiff, v. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Defendant.
TO THE HONORABLE ANALISA TORRES, UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
JAMES L. COTT, UNITED STATES MAGISTRATE JUDGE.
Robert Joyce, now proceeding pro se, brought this action against his former employer, Consolidated Edison Company of New York, Inc. (“ConEd”), seeking to vacate an arbitration award entered on September 30, 2021, that upheld his termination. After the Court granted ConEd's motion to dismiss, Joyce has moved to amend his petition. For the reasons set forth below, Joyce's motion should be denied.
I. BACKGROUND
Familiarity with the prior proceedings in this case, including the Court's Order dated September 7, 2022, Dkt. No. 16, granting ConEd's dismissal motion with leave to amend the petition, is assumed. Additional information is included here to provide context for consideration of the pending motion.
This action arises out of an arbitration between Joyce, represented by the Utility Workers Union of America, AFL-CIO, Local 1-2 (“Utility Workers Union” or “Union”) and ConEd. See Verified Petition to Vacate Arbitrator's Opinion & Award Pursuant to CPLR Article 75 (“Petition”) ¶¶ 7-27, Dkt. No. 1-1. Joyce alleges in his Petition the following events leading up to the arbitration:
Joyce was a “Distribution Splicer” for ConEd from on or about July 4, 2009, until his termination on March 5, 2021, during which time he was represented by the Utility Workers Union. Id. ¶¶ 7, 9-10. On January 29, 2021, Joyce submitted to an employer-mandated drug screening. Id. On February 8, 2021, ConEd's Medical Review Officer (“MRO”) informed him that the sample he provided was positive for methamphetamine. Id. ¶¶ 11-12. Joyce denied ingesting any illicit substances and requested that the sample be sent to another lab for testing. Id. ¶ 13. On February 22, 2021, he was informed that the results of the sample again confirmed the presence of methamphetamine. Id. ¶ 14. As a result of the drug test, Joyce was terminated, and the Union then filed a grievance on his behalf on March 24, 2021, pursuant to its collective bargaining agreement (“CBA”) with ConEd. Id. ¶¶ 8, 15.
An arbitration on the Union's grievance was held on August 3 and 17, 2021, to determine whether ConEd terminated Joyce's employment without reasonable cause, id. ¶ 16, and, after the arbitrator upheld Joyce's termination, the Union did not pursue any other proceedings to vacate the award. Id. ¶ 75.
B. Procedural History
On December 29, 2021, Joyce, represented by counsel, filed his petition seeking to vacate the arbitration award. Dkt. No. 1-1. On February 17, 2022, ConEd moved to dismiss the petition, see Dkt. Nos. 7-9, 12-14, and the Court granted the motion by Order dated September 7, 2022 (“Order”). Dkt. No. 16. Joyce was given permission to file a motion for leave to amend his petition, but only with respect to a proposed hybrid § 301/duty of fair representation (“DFR”) claim. Order at 9-10.
Joyce, now proceeding pro se, moved for leave to amend his petition on January 6, 2023, and filed a proposed amended petition (“PAP”). Dkt. No. 33 & 33-1. Joyce also filed a memorandum of law and declaration in support of his motion. See Plaintiff's Memorandum of Law, Dkt. No. 35; Declaration of Robert Joyce dated January 6, 2023, Dkt. No. 34. ConEd filed its opposition papers on February 3, 2023. Memorandum of Law in Opposition to Plaintiff's Motion to Amend (“Def. Mem.”), Dkt. No. 40; Declaration of Paul Limmiatis dated February 2, 2023 (“Limmiatis Decl.”), Dkt. No. 41. Joyce filed reply papers on February 17, 2023, and a supporting declaration on February 20, 2023. Memorandum of Law (“Pl. Mem.”), Dkt. No. 44; Declaration of Robert Joyce filed February 20, 2023 (“Joyce Decl.”), Dkt. No. 45.
Although the parties appear to use the words “complaint” and “petition” interchangeably in their submissions, the Court will refer to the proposed amended pleading as a “petition.”
The Court had previously denied without prejudice Joyce's prior motion to amend as both premature and as failing to comply with Rule 8 of the Federal Rules of Civil Procedure. Dkt. No. 32.
On January 9, 2023, the Court directed Joyce to refile his memorandum of law due to a misfiling, Dkt. No. 37, which he refiled on January 12, 2023. Dkt. No. 39.
On February 22, 2023, ConEd requested the Court strike Joyce's February 17 memorandum because it exceeded the required page limits, which the Court denied. Dkt. Nos. 46-47. However, the Court permitted ConEd to file sur-reply papers, Dkt. No. 47, which ConEd filed on March 3, 2023. Defendant's Sur-Reply Memorandum of Law in Opposition to Plaintiff's Motion (“Def. Sur-Reply”), Dkt. No. 48.
II. DISCUSSION
A. Legal Standards
1. Leave to Amend
Rule 15(a) of the Federal Rules of Civil Procedure, which governs the amendment of pleadings before trial, provides, in relevant part, that leave to amend a pleading shall be freely given “when justice so requires.” Fed.R.Civ.P. 15(a)(2). In the Second Circuit, “a pro se complaint should not be dismissed without the Court granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Dolan v. Connolly, 794 F.3d 290, 295 (2d Cir. 2015) (cleaned up); see also Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC, 797 F.3d 160, 190 (2d Cir. 2015) (“hew[ing] to the liberal standard set forth in Rule 15” and acknowledging how the “‘permissive standard' ... is consistent with [the Circuit's] strong preference for resolving disputes on the merits” (first quoting Williams v. Citigroup Inc., 659 F.3d 208, 212-13 (2d Cir. 2011); then citing Foman v. Davis, 371 U.S. 178, 182 (1962))).
“[A] pro se litigant in particular ‘should be afforded every reasonable opportunity to demonstrate that he has a valid claim.'” Dluhos v. Floating & Abandoned Vessel, Known as New York, 162 F.3d 63, 69 (2d Cir. 1998) (quoting Satchell v. Dilworth, 745 F.2d 781, 785 (2d Cir. 1984)). “[I]f the party seeking to amend has at least colorable grounds for relief, justice requires that its motion be granted.” McBeth v. Gabrielli Truck Sales, Ltd., 731 F.Supp.2d 316, 319 (E.D.N.Y. 2010) (first quoting Randolph-Rand Corp. v. Tidy Handbags, No. 96-CV-1829 (LMM) (DCF), 2001 WL 1286989, at *5 (S.D.N.Y. Oct. 24, 2001); then citing Ryder Energy Distrib. Corp. v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 783 (2d Cir.1984)). Leave should be denied, however, “if there is an ‘apparent or declared reason-such as undue delay, bad faith or dilatory motive . . ., repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of the allowance of the amendment, [or] futility of amendment.'” Dluhos, 162 F.3d at 69 (alterations in original) (quoting Foman, 371 U.S. at 182); see also Keitt v. New York City, 882 F.Supp.2d 412, 460 (S.D.N.Y. 2011). Even under the “liberal standard” applicable to pro se pleadings, “[g]ranting leave to amend is futile if it appears that plaintiff cannot address the deficiencies identified by the court and allege facts sufficient to support the claim.” Joyner v. Alston & Bird LLP, No. 20-CV-10093 (AT) (GWG), 2021 WL 4296433, at *3 (S.D.N.Y. Sept. 21, 2021) (quoting Panther Partners Inc. v. Ikanos Commc'ns, Inc., 347 Fed.Appx. 617, 622 (2d Cir. 2009)). “The futility of a proposed amendment is evaluated on a motion to dismiss standard.” Id. (citing Anderson News, L.L.C. v. Am. Media, Inc., 680 F.3d 162, 185 (2d Cir. 2012)).
2. Standards Applicable to Pro Se Litigants
In evaluating motions made by pro se litigants, including motions to amend, submissions made by pro se plaintiffs are held “to less stringent standards than formal pleadings drafted by lawyers.” Hughes v. Rowe, 449 U.S. 5, 9 (1980) (internal quotations omitted); see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (courts are “obligated to construe a pro se complaint liberally”). As a result, the Court may consider allegations that appear in a pro se plaintiff's motion papers or other submissions to the Court as well as in his pleadings. See, e.g., Freud v. N.Y.C. Dep't of Educ., No. 21-CV-2281 (MKV), 2022 WL 889213, at *4 (S.D.N.Y. Mar. 25, 2022) (courts “may also consider factual statements made in the pro se Plaintiff's opposition to the motion to dismiss” (citing Walker v. Schult, 717 F.3d 119, 122 n.1 (2d Cir. 2013))). Nevertheless, pro se plaintiffs are not excused from the normal rules of pleading; “dismissal . . . is proper if the complaint lacks an allegation regarding an element necessary to obtain relief.” Geldzahler v. N.Y. Med. Coll., 663 F.Supp.2d 379, 387 (S.D.N.Y. 2009) (cleaned up).
B. Analysis
1. Joyce Should Be Denied Leave to Amend
Joyce seeks permission to amend his petition on the grounds that (1) the proposed amended petition establishes ConEd violated the CBA; (2) the Union breached its duty of fair representation; (3) the arbitrator erred in disregarding “evidence of deliberate misstatements and fraud”; and (4) the causal connection between the Union's failure and the harm to him is well established and caused him to be denied a full and fair hearing. Pl. Mem. at 5-25. ConEd counters that amendment would be futile as the proposed amended petition both fails to allege any new facts establishing that the Union's conduct was arbitrary, discriminatory, or in bad faith, and does not sufficiently allege causation, as required for hybrid § 301/DFR claims. Def. Mem. at 7-24. The Court agrees with ConEd.
Because Joyce was directed to request leave to amend his petition only with respect to his hybrid § 301/DFR claim, Dkt. No. 16, this Report and Recommendation addresses only the parties' arguments related to this claim (i.e., Point II of Joyce's Memorandum).
a. Joyce Fails to State a Hybrid Section 301/Breach Of Duty Of Fair Representation Claim
Joyce's proposed amended petition falls short of alleging any new facts that would properly establish that the Union's conduct was “arbitrary, discriminatory, or in bad faith.” Vaughn v. Air Line Pilots Ass'n, Int'l, 604 F.3d 703, 709 (2d Cir. 2010). As discussed in the order dismissing the original petition, the duty of fair representation (“DFR”) theory “recognizes that unions ‘ha[ve] a duty to represent fairly all employees subject to the collective bargaining agreement.'” Order at 5 (alteration in original) (quoting Vaughn, 604 F.3d at 709). A breach of this duty occurs when a union's conduct towards a member is “arbitrary, discriminatory, or in bad faith.” Id. (citation omitted). Courts reviewing allegations of such a breach must be “highly deferential” given the “wide latitude that [unions] need for the effective performance of their bargaining responsibilities.” Air Line Pilots Ass'n, Int'l v. O'Neill, 499 U.S. 65, 78 (1991); Order at 5 (quoting same).
The Second Circuit has held that
[a] union's actions are “arbitrary only if, in light of the factual and legal landscape at the time of the union's actions, the union's behavior is so far outside a wide range of reasonableness as to be irrational.” O'Neill, 499 U.S. at
67) (citation and quotation marks omitted). Moreover, “[t]actical errors are insufficient to show a breach of the duty of fair representation; even negligence on the union's part does not give rise to a breach.” Barr v. United Parcel Serv., Inc., 868 F.2d 36, 43 (2d Cir. 1989). A union's acts are discriminatory when “substantial evidence” indicates that it engaged in discrimination that was “intentional, severe, and unrelated to legitimate union objectives.” Amalgamated Ass'n of St., Elec. Ry. & Motor Coach Employees of Am. v. Lockridge, 403 U.S. 274, 301 (1971). Bad faith, which “encompasses fraud, dishonesty, and other intentionally misleading conduct,” requires proof that the union acted with “an improper intent, purpose, or motive.” Spellacy v. Airline Pilots Assoc.-Int'l, 156 F.3d 120, 126 (2d Cir. 1988) (citations omitted).Vaughn, 604 F.3d at 709-10 (emphasis added). “Given these standards, a plaintiff bears an ‘enormous burden' in establishing that his union breached this duty.” Felton v. Loc. Union 804, Int'l Bhd. of Teamsters, No. 17-CV-2309 (AMD) (RML), 2020 WL 3104048, at *2 (E.D.N.Y. June 11, 2020) (citation omitted).
Although Joyce need not establish that the Union acted arbitrarily, discriminatorily, and in bad faith, Joyce does not allege any new facts that would establish any of these elements. Indeed, while Joyce's proposed amended petition provides more specificity than his original petition, it still fails to meet the requirements for a hybrid § 301/DFR claim.
i. Joyce Fails to Establish that the Union's Conduct Was Arbitrary
Despite the Court's rejection of his prior arguments concerning the Union's arbitrariness, Joyce nonetheless repeats them in this motion. Compare, e.g., Pl. Mem. at 2, 8, 11-12, 14, 16-21, 24, with Order at 6-7. Further, while Joyce contends that his allegations in the proposed amended petition are “not the same” as in his original pleading, Pl. Mem. at 19, he not only rehashes much of the same allegations from the original petition but also fails to provide any additional detail that would suggest “irrational” behavior by the Union. See O'Neill, 499 U.S. at 67 (arbitrariness must be “so far outside a wide range of reasonableness as to be irrational”). Instead, Joyce merely characterizes the Union's conduct as “arbitrary” in a conclusory fashion, without addressing ConEd's proffered evidence to the contrary. Compare, e.g., Pl. Mem. at 4-5 (“The proposed amended [petition] . . . proves how the Union's failure to represent [Joyce] denied [him] his statutory right to have a fair and meaningful hearing regarding his termination.”), with Limmiatis Decl. Ex. B at 2-4 (closing argument of Union) (arguing, inter alia, that Joyce did not use illegal substance he was accused of taking, citing testimony describing false positives as well as Joyce's prescription for Adderall, which can “produce a positive result for methamphetamine,” and attacking the verification process surrounding Joyce's drug test). Joyce thus fails to sufficiently allege that the Union's conduct was arbitrary for purposes of his DFR claim.
In deciding a motion for leave to amend, the Court may take judicial notice of filings in an arbitration proceeding. See, e.g., Purjes v. Plausteiner, No. 15-CV-2515 (VEC), 2016 WL 552959, at *4 (S.D.N.Y. Feb. 10, 2016).
ii. Joyce Also Fails to Establish that the Union Acted Discriminatorily or in Bad Faith, or that It Caused Him to be Denied a Fair Hearing
Joyce alleges in the proposed amended petition that the Union acted “discriminatorily” because the Union and ConEd were “bias[ed] towards employees recovering from substance abuse.” See, e.g., PAP ¶¶ 29-30. He does not, however, allege any specific facts or advance any arguments showing how the Union's conduct demonstrated bias against him or employees recovering from substance abuse. See, e.g., Pl. Mem. at 4 (listing only the requirement that plaintiff establish that the union's (in)actions were arbitrary, discriminatory, or in bad faith) (quoting Vaughn, 604 F.3d at 709-10). As ConEd correctly observes, Joyce “asserts no plausible allegations of fact to establish that he was subjected to any discriminatory treatment by the Union, much less discriminatory treatment ‘that was intentional, severe, and unrelated to legitimate union objectives.'” Def. Mem. at 27 (internal quotation marks omitted); Def. Sur-Reply at 6-7 (“[Joyce] makes no legally-valid argument to support any claim that the Union's conduct was discriminatory or in bad faith, and thus, essentially abandons those points.”).
Because Joyce fails to advance any arguments or provide “substantial evidence” establishing that the Union “intentional[ly]” and “severe[ly]” engaged in discrimination “unrelated to legitimate union objectives,” Vaughn, 604 F.3d at 709 (citation omitted), he cannot be said to have met the discrimination requirement for his DFR claim. Similarly, because he fails to allege that the Union engaged in any “fraud, dishonesty, and other intentionally misleading conduct” or “acted with an improper intent, purpose, or motive,” id. (quotation marks omitted), he has failed to establish bad faith for purposes of his DFR claim.
Finally, Joyce has failed to plausibly allege causation. Indeed, as ConEd argues, see Def. Mem. at 24, Joyce includes virtually nothing related to causation in his proposed amended petition. All he says, in the most conclusory fashion in his memorandum of law, is that “the Union's failure to represent him tainted the arbitration proceeding.” Pl. Mem. at 3-4. This, without more, is insufficient to plead the causation element of a duty of fair representation claim.
b. Dismissal of Joyce's Petition is Warranted
Because he has failed to sufficiently allege a valid DFR claim in the proposed amended petition, Joyce's motion should be denied and his petition dismissed with prejudice. A court may dismiss a pro se litigant's claims without leave to amend when, inter alia, “the problem with [the plaintiff's] causes of action is substantive” such that “[b]etter pleading will not cure it.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). Likewise, “where the proposed amendments have no merit,” Harnett v. Barr, 538 F.Supp.2d 511, 514 (N.D.N.Y. 2008) (citing Health-Chem Corp. v. Baker, 915 F.2d 805, 810 (2d Cir.1990), or where “plaintiff persists in attempting to restate [the] complaint,” the court may deny leave to amend. Gurvey v. Cowan, Liebowitz & Latman, P.C., No. 06-CV-1202 (LGS) (HBP), 2015 WL 4460859, at *9 (S.D.N.Y. July 21, 2015).
Similar to Gurvey, the Harnett court granted in part plaintiff's motion for leave where new facts and claims were alleged but denied leave to amend as futile where “most of the facts” in the proposed amended complaint “remain[ed] the same” as in the original pleading. 538 F.Supp.2d at 518, 523-28.
Such is the case here. Despite Joyce's representations that his “argument in the proposed amended petition is not the same,” Pl. Mem. at 16, the proposed amended petition is nonetheless very similar to his original petition. Joyce, for instance, claims that the proposed amended petition will “quite easily” demonstrate that ConEd violated the CBA by terminating his employment and that the Union “in bad faith” allowed ConEd to deny him his due process rights, see Pl. Mem. at 5, but as discussed above, the only mention of bad faith in the proposed amended petition (besides stating the legal standard) is one paragraph alleging in conclusory fashion that the Union acted in bad faith by pushing back the arbitration a month. See PAP ¶ 45. While this allegation is not set forth in the original petition, it hardly “nudge[s] [Joyce's] claims across the line from conceivable to plausible.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Accordingly, Joyce's proposed amendments fail to withstand the “motion to dismiss standard,” see Joyner, 2021 WL 4296433, at *3; Anderson News, 680 F.3d at 185; as he does not allege any new facts that would establish a “colorable” basis for relief. See McBeth, 731 F.Supp.2d at 319. Having been given an opportunity to amend, Joyce should have his case dismissed with prejudice, as he should not be given what would now be a third chance to assert plausible allegations of fact. See, e.g., Forkin v. Loc. 804 Union (IBT), 394 F.Supp.3d 287, 310 (E.D.N.Y. 2019) (denying leave to amend where proposed amended complaint “would be futile” because it “adds no new allegations that would establish a plausible claim against [union] for breach of the duty of fair representation”).
III. CONCLUSION
For the reasons stated herein, Joyce's motion for leave to amend should be denied and the case dismissed with prejudice.
PROCEDURE FOR FILING OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See Fed.R.Civ.P. 6(a), (b), (d). A party may respond to any objections within fourteen (14) days after being served. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Analisa Torres, United States Courthouse, 500 Pearl Street, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Torres.
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).
If Joyce does not have access to cases cited herein that are reported on Westlaw, he should request copies from counsel for ConEd. See Lebron v. Sanders, 557 F.3d 76, 79 (2d Cir. 2009); Local Civil Rule 7.2, Local Rules of the United States District Courts for the Southern and Eastern Districts of New York.